Why Maryland v King Is Yet Another Disastrous Decision For Civil Liberties And A Further Erosion Of The Constitutional Rights That Protect The American People From An Abusive, Over-Wielding, Intrusive Big Government

‘Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.’

- Justice Antonin Scalia, in a sharp dissent in Maryland v King, which he read aloud in the courtroom

Damn right. Thank you for saying so and reading your dissent publicly.

The Fourth Amendment states:

‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

 

‘And … so? That’s exactly what happens with fingerprint matches, too. They get entered into state, regional, and national databases, where investigators can find hits on previously cold cases.’

- Ed Morrissey, Hot Air, 3 June 2013

Oh, Ed, can you really not see the difference between fingerprints and DNA???

Do you want the government to have access to your genetic makeup? Perhaps, you have a genetic predisposition to certain diseases. You know, HHS – and…Who knows? Maybe, the IRS – might want that information in the future.

Isn’t it bad enough that the FEDERAL GOVERNMENT now OWNS your medical records?

Before Obamacare (BOC), YOU owned your medical records.

After Obamacare (AOC), the GOVERNMENT owns them.

Haven’t you seen enough corruption in BIG GOVERNMENT to understand why no one should want their DNA taken without a warrant?

Hey, maybe, you’ll get arrested for some bogus reason and the government will get your DNA, put it in a database, and BOOM!: You are determined to have some genetic disposition to mental illness. NO GUN FOR YOU.

‘The salient point in your argument is ObamaCare, not booking procedure for an arrest. Also, as I point out in the post, the dissenters never even bring up the genetic privacy argument in Scalia’s opinion.’

- Ed Morrissey on June 3, 2013 at 1:40 PM

No, the salient point in my post is that DNA is different from fingerprints, as it identifies much more than a person’s mere identity.

I don’t care whether Scalia and the dissenters raised the issue. I AM.

We’ve seen enough of what the Federal government, with its constant snooping, targeting, harassing, etc, of Americans, to know that this is a very bad idea.

Why is it such a prohibitive burden for the state to get a warrant?

‘Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.’

- Justice Antonin Scalia

Back when Lawrence v Texas was decided, Scalia sharply dissented with Justice Kennedy’s opinion for the majority.  Kennedy went out of his way to argue that legalising sodomy would not lead to gay marriages.  Scalia, rightly, said ‘after this decision, SSM is INEVITABLE’ because one of the main reasons that SSM was prohibited was because of sodomy laws. His point was simple: Take away the criminality of sodomy and the constitutional barriers to SSM also fall.

People from both sides laughed and said that Scalia was hysterical…

…and, yet, THIS Court will be ruling on TWO cases on SSM within days/weeks.

The Left sure isn’t laughing at Scalia’s prescience now, is it? They have been arguing his precise point ever since.

[I agreed with Scalia on the inevitablity of SSM, but with the majority in Lawrence. I raise the case merely to point out what was once labeled as 'hysterical rantings from the black helicopter crowd' has become reality in many states already.]

I think what frustrates me so much with the responses of too many is the failure to understand how the law works. Caselaw is built upon precedent. It doesn’t remain in a vacuum. For example, Roe v Wade didn’t just come out of the blue. It was based on a ‘right to privacy’ that the Supreme Court found in Griswold v Connecticut. Also, as I noted above, the SSM cases are built, in a large degree, on Lawrence v Texas.

Last year, the Court decided a case called Kentucky v King. Say you are presently sitting on your sofa, surfing the net, and smoking a big joint. Outside, the police are chasing a drug dealer. He disappears into your apartment building. The police enter the building and, in the process of searching for him, they pass and smell the pot wafting from your door.

Now, imagine the ‘Constitutional lawyer’ and ‘champion of civil liberties’ like Barack Obama and his administration filing an amicus brief in support of the right of the police to bust down your door, search your apartment, seize your pot and, possibly, other property that can then be sold in police auctions ALL WITHOUT A WARRANT!!!!

Well, he did…and the Supreme Court ruled that ‘warrantless searches conducted in exigent circumstances do not violate the Fourth Amendment so long as the police did not create the exigency by violating or threatening to violate the Fourth amendment.’

Now, you may ask: ‘What was the exigent circumstance that gave rise to the police’s right to kick down a citizen’s door, search his apartment, and seize evidence ALL WITHOUT A WARRANT?’

Well, that’s easy, you simpletons and subjects (sarc): The guy might destroy the evidence before the police can obtain a warrant!

Think about that for a second. Basically, the Court ‘repealed’ the Fourth Amendment BECAUSE THERE ARE VERY FEW CASES IN WHICH THE TIME BETWEEN THE POLICE COMING INTO CONTACT WITH POSSIBLE ILLEGAL BEHAVIOUR AND THE OBTAINMENT OF A SEARCH WARRANT WOULD NOT APPLY. What’s the difference between flushing pot down the toilet and a person destroying a computer in a way that evidence cannot be recovered?

Now, they’ll be those of you, who will claim that this is ‘black helicopter’ stuff, but bear with me for a sec…

Let’s say that the Federal government makes it a felony to use a certain type of light bulb. One day, you are sitting on your sofa and the cops are chasing a drug dealer. In the course of this chase, one of the police officers notices that you are enjoying the illumination provided by felonious contraband. If the police officer takes the time to go to a judge to obtain a warrant, you might be able to destroy those bad light bulbs. What will stop the police from breaking down your door, searching your home, seizing ANY evidence of ANY POSSIBLE crime, arresting you, charging you with a felony, selling your property at a police auction, and tell you, ‘Well, if we are wrong, then you can always file a lawsuit, pray that you win, and hope that we deign to pay any judgment.’

The law MUST be looked at in context of previous cases AND FUTURE CASES. Removing the barrier to collecting DNA because, well, it’s no different than fingerprints or booking photos, is a HUGE DEAL.

DNA is NOT like fingerprints or booking photos, which only identify a person.

DNA can be used to identify much more than a person’s identity…and, now, that the Supreme Court has, basically, said: ‘What’s the big deal about DNA?’ don’t be surprised when Maryland v King leads to more intrusive behaviour by the government…and, please, don’t forget that I warned you.

‘And when there is a rape committed in a town, the police will simply “temporarily” arrest EVERY MAN IN TOWN who fits the description, collect DNA and drop all the “charges”, and then run that DNA as a comparison to see if anybody is the rapist.’

- Mahdi on June 3, 2013 at 3:06 PM

‘Something like this has already happened in at least one case, the murder of a woman on Cape Cod. I think there have been other cases, but I don’t recall the details.’

- cool breeze on June 3, 2013 at 3:13 PM

The case involved the murder of fashion writer, Christa Worthington.  All of the men were NOT 'temporarily arrested' and the collection of DNA was based on a 'voluntary basis.'  IIRC, the ACLU attempted to stop even the voluntary collection.  The man, who was eventually charged with her murder, VOLUNTARILY gave his DNA.  He was not 'temporarily arrested and subjected to a DNA swab.' 

While I don't particularly care about 'voluntary DNA collection schemes' because they tend to make subjects out of those that refuse to submit - and people may have a reason for not wanting to comply other than having ANY culpability in the case at issue* - it IS different than what Maryland v King  has given us.

* For example, someone in the community, who has been a law-abiding citizen for decades, may have committed a crime years ago and was never charged.  It might not even be a serious case, but could have serious consequences in his life.  Under the Fifth Amendment, this man should have a right not to incriminate himself by giving DNA.

‘If I may break out of my usual pessimism: Precedent isn’t forever.’

- nobar on June 3, 2013 at 3:33 PM

Very true, but the arc of history has proven that it is difficult to reverse and propels the ever-reaching growth of government and intrusion in the name of ‘progress.’

‘If we can take finger prints on an arrest, we can take DNA on an arrest. I’m going to have to disagree with Scalia on this one. I can’t say I’m totally comfortable with this, but I don’t see how a cheek swab, and DNA storage of said swab, is any different than finger printing and storage of said print.’

- NotCoach on June 3, 2013 at 3:27 PM

Unlike fingerprinting and booking photos, DNA identifies much more than individuals. It can be used to identify genetic predispositions to illnesses, including mental.

When you read of cases such as this, keep the IRS scandal in mind.

And, before anyone accuses me of being in the ‘black helicopter crowd,’ remember that was what many of you said about the then-allegations that the IRS was targeting Obama opponents.

‘I still fail to see the difference between this and fingerprinting. ObamaCare is not a valid rebuttal in my view.’

- NotCoach on June 3, 2013 at 3:41 PM

Fine. Don’t concern yourself with Obamacare. Just hope that genetic testing doesn’t reveal you to have a predisposition to schizophrenia or some such mental disorder. The government might just argue that you are too dangerous based on your DNA profile to ever be allowed to own a firearm.

‘All the abuse the government may or may not be capable of is irrelevant. Police officers can abuse their authority 24/7 if they wished too, but does the potential for such abuse preclude the possibility of ever arresting anyone? The only question here is whether or not DNA collection is legitimate on arrest. In my view it depends. If we’re going to use the finger print standard it is. If we instead reexamine our 4th Amendment jurisprudence I would argue we need a warrant for finger prints as well.’

- NotCoach on June 3, 2013 at 3:53 PM

You are looking at this case in a vacuum and that is not how the law works. It is not about potential abuse by the police. It is about potential abuse by the government and the removal of one more barrier that stands between the people and their government.

Already, many employers require background checks and even the submission of fingerprints as a condition of employment. If, as the Court seems to be saying, there is no real difference between fingerprints and DNA, what is to stop laws that permit collection of DNA by employers or government agencies for reasons OTHER THAN BEING ARRESTED, which is NOT the same thing as being charged with a crime, per se?

Will the next step being to permit DNA collection for PRIVILEGES? You want a driver’s licence? Well, you know, you are going to have to submit a DNA sample. You want a marriage licence? Well, you are going to have to submit a DNA sample because you and your intended might create children with birth defects. The government can already prohibit certain people from marrying based on blood because of possible birth defects, etc. Why not prevent people, who could create similar birth defects, from obtaining marriage licences, too? What difference, at that point, would it make?

Will the government or employers, at some near point in the future, be able to use the information gleaned from DNA for other reasons? We are talking about more than tools that simply identify individuals. ‘You know, you have a genetic predisposition to cancer and investing in and insuring you would be very costly,’ says a possible employer.

What about iris scans or, perhaps, some test that might screen brain waves to predict behaviour, which are being worked on as I write? They aren’t invasive either.

People used to look at movies like ‘Minority Report’ as some sci-fi fantasy that might be interesting, but never, ever, ever could happen in the real world. IIRC, Louise Brown, the world’s first test tube baby, was born in the same year that I was. Her birth stunned the world. Now, IVF is no biggie. Technology moves and, before we willing cede the few constitutional protections that we have left, we should consider the future implications.

[I agreed with Scalia on the inevitablity of SSM, but with the majority in Lawrence. I raise the case merely to point out what was once labeled as 'hysterical rantings from the black helicopter crowd' has become reality in many states already.]

- Resist We Much on June 3, 2013 at 1:55 PM

That is dead-on accurate. It was obvious to me in law school when Lawrence dropped, but the dumb-ass libbies all scoffed at Scalia’s “boogieman”. Why? BECAUSE they were support SSM/planning to legalize SSM back then, and didn’t want anyone tipped off in advance to oppose it.

- Saltyron on June 3, 2013 at 3:57 PM

‘You are looking at this case in a vacuum and that is not how the law works.’

- Resist We Much on June 3, 2013 at 4:10 PM

‘That’s how the Constitution works. Something is either constitutional or it isn’t. Everything else is a matter of law and/or regulation.’

- NotCoach on June 3, 2013 at 4:20 PM

I said ‘the law.’ I meant how the law is handled in the real world.  In law school, we didn’t study the Constitution, the Federalist Papers, and the legislative histories of laws.  We studied PRECEDENT.

Once again, Roe v Wade was not a case that came out of the blue for those paying attention. The ‘right to privacy’ was found in Griswold v Connecticut years before involving the right of married couples to use contraception. SSM laws are based, in large part, on the removal of the criminality of sodomy. Once sodomy was no longer illegal, then it was easy for proponents to begin to argue along the lines of Loving v Virginia.

‘Allowing certain information to be collected on arrest does not promote or prevent abuse. We prevent abuse through legislation and following the law.’

- NotCoach on June 3, 2013 at 4:20 PM

Sure, but I’m not limiting my analysis to the collection of DNA upon arrest. What the Court is saying is that DNA is no different than fingerprints and booking photographs. THAT IS UNTRUE, as a matter of science.

‘And everything else in your post is a matter of law.’

- NotCoach on June 3, 2013 at 4:20 PM

A ‘matter of law’ doesn’t mean that all laws are constitutional when passed. They are determined to be constitutional and precedent is critical here.

‘I hate taxes, but they aren’t unconstitutional. Again, a matter of law.’

- NotCoach on June 3, 2013 at 4:20 PM

  

Income taxes WERE unconstitutional (see Pollock v Farmers’ Loan & Trust Company). It required a constitutional amendment to make them legal.

They did not arise through an evolution in the law.

They did not arise because courts chipped away at the prohibition and the people did nothing.

‘I’m repeating myself now, but I think it is important to do so. As I said above I believe 4th Amendment jurisprudence should be revisited in general.’

- NotCoach on June 3, 2013 at 4:20 PM

  

I agree, especially in the wake of the Court’s decision in Kentucky v King.

‘But as long as we hold to current precedent DNA collection on arrest is constitutional.’

- NotCoach on June 3, 2013 at 4:20 PM

So is Obamacare. Do you still support it? Am I supposed to support the collection of DNA because 5 justices on the Supreme Court said it is? The Court once upheld slavery and segregation, too.

‘I also would support laws to stringently limit what law enforcement and private companies can collect from a person in general.’

- NotCoach on June 3, 2013 at 4:20 PM

Yet, because of this case, a critical barrier to preventing those has been removed. The government has been given a brand new spanking power and, as we have seen, it is not often that it returns such power to the people.

‘I refuse to view the Constitution through a self selective eye that sees only what it wants to see. Yes, slavery was once constitutional. No, that was not right, but being wrong did not make it unconstitutional.’

- NotCoach on June 3, 2013 at 4:25 PM

In 1986: Laws criminalising sodomy were constitutional.

In 2003: Laws criminalising sodomy were UNconstitutional.

Same Constitution, different Court.

‘I don’t think Roe or the ObamaCare ruling are the same thing. 4th Amendment jurisprudence is a complicated mess, and good arguments exist on both sides on several 4th Amendment issues. And we either abide by current 4th Amendment precedent, or we revisit it entirely. Roe and ObamaCare are just plain wrong and stupid.’

- NotCoach on June 3, 2013 at 4:49 PM

You are missing my point. Roe was built on the foundation created in Griswold. It has been used as a further precedent since.

Obamacare created a heretofore unknown tax in the Constitution. Its precedent can be used in the future to create similar taxes on individual mandates.

My argument is not limited to the Fourth Amendment. It is, at its crux, an argument about precedent and the removal of yet another barrier protecting the people from the government, as the Founding Fathers intended in the Bill of Rights.

‘Our current tax system arose through law. The 16th Amendment does not require income taxes be collected, but only allows it.’

- NotCoach on June 3, 2013 at 4:49 PM

The laws concerning taxing income REQUIRED a CONSTITUTIONAL AMENDMENT. We no longer require constitutional amendments to erode our rights. Courts get to do that and the sheeple say nothing.

‘Which brings us back around to the black and white aspect of the Constitution. Something is either allowed, or it is not.’

- NotCoach on June 3, 2013 at 4:49 PM

So, you honestly believe that is how it works, eh? The composition of the Supreme Court, for example, doesn’t have any impact on the ‘black and white’ aspect of the Constitution.

Do you know what is ‘black and white’? The Second Amendment. How long in this country’s history did it take for the right to bear arms be recognised by the Supreme Court? More than 200…in a 5/4 decision. That ‘black and white’ aspect of the Second Amendment is one liberal justice replacing a conservative justice away from extinction.

‘And my view of current 4th Amendment jurisprudence tells me DNA collection on arrest is allowed.’

- NotCoach on June 3, 2013 at 4:49 PM

‘Current 4th Amendment jurisprudence’???

You make my point. The ‘living and breathing Constitution’ will keep marching on depending upon what is the ‘current’ jurisprudence and how people ‘view’ it.

‘Yet, a critical barrier to preventing those has been removed. The government has been given a brand new spanking power and, as we have seen, it is not often that it returns such power to the people.’

- Resist We Much

‘I agree.’

- NotCoach on June 3, 2013 at 4:49 PM

Yet, you support this decision. As I wrote above, generally, don’t say that I didn’t warn you.

PS: Can’t wait for you to start supporting SSM should the Court strike down DOMA and rule Prop 8 unconstitutional. It will be the ‘current’ jurisdiction, ya know?

‘Again, I agree the [ruling in Griswold v Connecticut] is wrongheaded. However, the later ruling is based in the illegitimate constitutional concept that we have a right to privacy. And that right to privacy invention would probably be used by many to say DNA collection on arrest is unconstitutional.’

- NotCoach on June 3, 2013 at 4:51 PM

I disagree. I don’t have a problem with Lawrence.  Like Brown v Board of Education, the Court used a ‘right’ or theory that it didn’t need to in order to arrive at the same decision.

Well, I’m pretty sure that the Founding Fathers would have argued – without a ‘right to privacy’ – that the government needed a warrant to collect such data.

As far as the collection of DNA and the Fourth Amendment is concerned, I don’t need the ‘right to privacy’ to argue that a warrant should be obtained.

‘Because your DNA could conceivably be used to correctly diagnose a mental disorder?

If you don’t think mental illness should disqualify you from owning a gun, state that. Using DNA to determine that is really unrelated — except that it would be more accurate than current methods.'

- Count to 10 on June 4, 2013 at 8:16 PM

I’d ask you to re-read the post because you obviously missed something very important:

NOWHERE IN MY POST DID I WRITE ANYTHING ABOUT A PERSON, WHO HAD BEEN DIAGNOSED WITH A MENTAL ILLNESS. NOWHERE.

Rather, I wrote about genetic predispositions to illnesses being used proactively.

In this country, you cannot be deprived of your rights until you actually commit a crime or, in the case of gun control, until you have been adjudicated mentally ill.

There’s a HUGE difference between being genetically predisposed to an illness and actually contracting/developing it. For example, Angelina Jolie just had a double mastectomy because she carries the ‘faulty’ BRCA1 gene. Doctors estimated that she had an 87% chance of developing breast cancer, but she was cancer-free, never having been diagnosed with any form of cancer when she underwent the procedure.

People can disagree as to whether Jolie shouldn’t have taken such a drastic step (I don’t), but what they cannot dispute is that it was a decision made solely be her. No government was involved.

Imagine a sort-of ‘faulty’ BRCA1 gene for schizophrenia. If the government determines that an individual carries this gene and has an 87% chance, possibly, of developing the illness, should it be able to act proactively and prescribe the person’s rights?

'The rest of it is, well, kind of insane. You are describing a fascist state, and then more or less claiming that DNA privacy is the one single thing separating us from it.'

I bet you were arguing that the IRS’ targeting of proponents of causes which Obama opposes in an unethical, immoral, illegal, unconstitutional, and UN-American manner was just part of another of the musings of a member of ‘black helicopter crowd’ not too long ago.

You might consider what the Federal government did to black men, secretly, in Tuskegee before assuming that a country must be a fascist state before the government could possibly use medicine or health as a means to harm, be it intentionally or negligently, citizens.

History has proven otherwise.

'You seem to be missing the fact that if it ever gets to that point, current ability to test DNA will be irrelevant. You are chasing after a grand distraction.'

 

You seem not to understand how the law works. Every time that you cede a modicum of your personal liberty and constitutional rights, including the right to keep your person free from unreasonable searches and seizures without demanding that a government prove there is probable cause to a judge in order to secure a warrant, you set another foundational stone in place for further governmental intrusion and erosion of liberty.

Don’t say that I didn’t warn you.

'I think some people are either over-reacting or don’t know a lot about this issue.

“The CODIS database is based on 13 loci … which … make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” … The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing”

- celt on June 4, 2013 at 9:27 PM

Maryland v King is a foundational stone, just as Griswold v Connecticut paved the way for Roe v Wade.

Let me guess, you oppose the idea of a national gun registry, but see no problem with a national DNA database.

No irony there.